Submission on expanding legal services options for Ontario families

Submission from LAO to the Attorney General regarding the consultation on expanding legal services options for Ontario families (April 2016)

1. Introduction

Thank you for inviting Legal Aid Ontario (LAO) to provide input in the Family Legal Services Review consultation, based on the consultation paper Expanding Legal Services Options for Ontario Families (the consultation paper).

The purpose of the review, as set out in the consultation paper, is to explore whether the delivery of family legal services should be expanded to include people who are not lawyers, such as paralegals, law clerks and law students. LAO is Ontarios largest provider of family legal services, and has a statutory mandate to promote access to justice to low-income Ontarians. Each year, thousands of low-income people rely on LAO for legal information, advice and assistance, up to and including in-court legal representation, to address their family law issues. In carrying out its mandate, LAO is actively engaged in the design and delivery of innovative and responsive family legal services, including services that responsibly integrate the use of non-lawyers within the ambit of the current legal and regulatory framework, and as such is pleased to share its experience and its views on this important policy issue.

There is, and has been for some time, general consensus within the legal community that more needs to be done to address challenges in the family justice system and to make it more accessible to low and middle income Ontarians. It has been estimated that perhaps half1 of all persons in Ontarios family courts may be unrepresented, most often because they are unable to afford the assistance of a lawyer.

Engaging non-lawyers in providing services in family law matters as a way to increase access to justice for Ontarians is a policy objective which has been supported in numerous reports, including the October 2013 final report of the Action Committee on Access to Justice in Family and Civil Matters, which recommended increasing the use of non-lawyer experts to address unmet legal needs and help fill the access to justice gap. The report recommended that:

Jurisdictions should expand reliance upon properly trained and supervised paralegals, law students, articling students and non-lawyer experts to provide a range of services to families with legal problems.2

LAO supports - and has been playing a fundamental role in introducing - family law reform initiatives that expand access and reduce the number of unrepresented litigants in family courts. LAO also believes that non-lawyers have a role to play in providing services to assist people who are dealing with family law problems. LAO is uniquely placed, given its organizational mandate, infrastructure and capacity, to play a major role in developing and implementing innovative access to justice solutions, including solutions that involve the use of non-lawyers. Indeed, LAO has been in the forefront in utilizing non-lawyers in the family law context, particularly within its Family Law Service Centres, where teams of service providers offer a full range of family law services. LAO has also successfully used non-lawyers in the criminal law context, where a recent pilot project has demonstrated the value of having licensed paralegals perform legal aid services as part of duty counsel office teams.

However, LAO wishes to emphasize that the complexity of many family law matters, the fundamental importance and consequences of these matters for all family members including children, the risk that family violence may be a factor, and the innate vulnerabilities of persons who are going through family dissolution, are such that great care must be taken in introducing, regulating, supporting and monitoring new types of services and service providers in this area of law. Consideration of all relevant evidence and factors, including through a consultation process such as this one, must be an important component of any such process.

LAOs response to this consultation is structured in two parts. The first part provides information about LAOs family law services, with an emphasis on LAOs eligibility expansion initiative and specialized services that have been designed to respond to the need for increased access and more service delivery options, including early resolution options, for resolving a family law matter. The second part of LAOs submission responds to the individual questions posed in the consultation paper.

2. Expanding access to justice: Improvements to LAO's family law services

Family law services are a core component of LAOs statutory service delivery mandate.3 From its inception, LAO has offered family law services through both its certificate and duty counsel programs. These services are vital to the thousands of family law clients who are assisted through these programs each year.

Cutbacks to legal aid during the recession of the 1990s resulted in a scaling back of services that were previously available, and the erosion of the legal aid financial eligibility thresholds, which were not adjusted for inflation for nearly two decades prior to the introduction of LAOs eligibility expansion initiative in November 2014, meant that more and more low-income people4 did not qualify financially for legal aid services. Services to family law clients, in particular, had been negatively affected by the cutbacks of the 1990s. LAOs needs assessment work and an independent data analysis undertaken in 2012 to support an internal review of the impact of financial eligibility restrictions on low-income clients confirmed that families, and by extension family law clients (most of whom are women), had been hardest hit by these restrictions. In response to these findings, LAO developed a business case to the province for funding to increase the eligibility guidelines.

LAO had also committed, as early as 2007/2008, to a strategy to expand its range of family law services along a continuum that would make more services accessible to a larger number of people, based on the principle of triaging clients and matching client need to the appropriate service and service provider. Utilizing cost-effective service delivery methods, including telephone and internet-based technology, and concentrating on providing more upfront information and assistance, to help people deal with their problems before they escalate into costly litigation, were key components of this strategy, as was a commitment to identify and prioritize services to the most vulnerable clients, including victims of domestic violence.

In developing and implementing its continuum of services, LAO exemplified an approach that would later be recommended in the 2013 final report of the Action Committee on Access to Justice in Civil and Family Matters. The report recommended the provision of a range of accessible and affordable services and options in the form of a family justice services continuum that would offer an array of dispute resolution options to help families resolve their disputes.5 The report also recommended allocating resources to expand early front end services such as information and mediation services, and providing access to triage services, including assessment, information and referral services.6 These were all features that were central to LAOs own approach to improving access to family law services over the past eight years.

During these years LAO continued working, alongside the Ministry of the Attorney General (MAG) and other justice system partners, to increase access to family justice through new services that were focused on providing more early information and advice services and offering access to more affordable, less confrontational means of resolving family law issues. LAO received new funding from the province in 2009 that was dedicated to improving legal aid family law services and LAO used this funding to support several of its new initiatives:

In 2013 LAO received three years of dedicated new funding ($10 million each year) from the Ontario government to further improve and strengthen its family law and poverty law services. LAO used the family law component of this one-time investment, now in its final year,7 to make improvements to existing family law services and to introduce new services, including:

An unprecedented new financial investment in legal aid in the 2014 provincial budget made it possible for LAO to implement an across-the-board 6% increase to the income cut-offs for legal aid eligibility in November 2014, marking the first increase to financial eligibility for legal aid in two decades. At the same time, financial eligibility for certificate applicants experiencing domestic violence was raised to the duty counsel eligibility thresholds, which are higher than the cut-offs for certificate eligibility. Two subsequent 6% increases to the income eligibility thresholds have been implemented since then, the first on April 1, 2015 and the second on April 1, 2016. These increases are part of a longer-term eight to ten year plan which, if fully implemented, would raise eligibility for legal aid to the standard of the Low Income Measure (LIM)8 maintained by Statistics Canada.

Eligibility for Certificate Services as of April 1, 2016: Based on Gross Family Income

Number of family members Likely qualifies non‑contributory Likely qualifies with a contribution agreement Certificate eligibility for domestic violence clients
1 $12,863 $14,888 $21,438
2 $22,253 $26,798 $32,131
3 $25,367 $31,228 $36,921
4 $28,664 $35,873 $44,068
5 $31,817 $40,447 $50,803
Single boarders $8,456 $9,766 $21,438

Eligibility for Duty Counsel and Summary Legal Advice Services as of April 1, 2016: Based on Gross Family Income

Number of family members Income must be below
1 $21,438
2 $32,131
3 $36,921
4 $44,068
5+ $50,803

In June 2015, following an extensive stakeholder consultation process concentrated on identifying and prioritizing areas of unmet client need, LAO introduced a range of expanded legal services in the areas of family, criminal, immigration and refugee and mental health law. These initiatives were focused on expanding certificate eligibility for different types of legal matters, and were intended to complement and enhance the effectiveness of the increases to the financial thresholds. Expanded legal services that were introduced in family law at this time were:

The impact of eligibility expansion in expanding client access to family legal aid services has been significant, as LAO anticipated. In 2015/2016, LAO experienced an overall increase of over 20% in certificates issued. LAO issued 30,185 family law9 certificates in 2015/2016, compared to 22,085 certificates the year before and 19,014 certificates in 2013/2014.

LAOs vision for family law services is focused on making services accessible to more Ontarians, as early as possible in the process and through multiple access points and channels including telephone and internet-based services, one-stop locations like the FLSCs, and partnerships with multi-service hubs where clients are able to connect with and obtain assistance from social workers and other non-legal service providers.

3. LAO's responses to the consultation questions

Questions:

Q.1 What legal services are sought and provided in each type of family law case (e.g. divorce, custody and access), from beginning to end?

LAO provides family law services in the broad areas of custody, access, and support. Issues for which coverage is available include child support (including s.7 extraordinary expenses), spousal support, restraining orders, mobility issues, parental alienation, Family Responsibility Office (FRO) matters including default hearings and refraining motions, motions to change child support, custody and access and incidents of these, contempt and enforcement.

Clients often have questions about annulments, divorce and property matters, but LAO only provides limited advice in these areas. Divorce coverage is not available where there are no corollary issues present. LAO coverage is also unavailable for matters such as marriage contracts/cohabitation agreements, change of name applications, and changes to wills.

The specific legal services that are provided by LAO in areas where coverage is available depend on whether the client holds a legal aid certificate or is accessing duty counsel services, FLSC services, advice lawyer services or mediation services. A discussion of each of these service vehicles can be found below in the answer to Question 3.

For child custody, access and support matters, depending on the needs of the client and client eligibility, LAO provides a full range of services that include:

Importantly, not every client needs to go to court to resolve their matter and it is frequently better for family law clients and their children if the case does not proceed through litigation, provided there are other ways to reach an appropriate resolution. With this in mind, and in an effort to provide services to a greater number of people within a limited financial envelope, LAO has developed a service delivery model which places its services along a continuum in order to match service level with client need. At the same time, LAO has invested in the development of front-end services that encourage out-of-court resolution where appropriate.

The theory behind LAOs continuum of service model is that a clients needs will be matched with a service that allows the matter to be resolved as expediently and cost effectively as possible. This means that certificate services are reserved for the most complex cases or the most vulnerable clients. The approach of providing services along a continuum was echoed in the final report of the Action Committee on Access to Justice in Civil & Family Matters, which concluded that the justice system should widen its focus to include not only dispute resolution but also education and prevention. The committee identified the provision of a continuum of services as an appropriate and innovative means to achieve this goal:

the justice system must be significantly enhanced so that it provides a flexible continuum of justice services, which includes court services of course but which is not dominated by those more expensive services. The motto might be: court if necessary, but not necessarily court.10

To support its continuum of services, LAO has developed assessment and triage protocols, including for domestic violence, that ensure appropriate referrals across its various service lines by intake staff.

Q.2 What family legal services are currently provided by a person other than a lawyer (e.g. paralegals, law students, law clerks), whether independently or under the supervision of a lawyer?

LAO does not currently offer independent (non-supervised) family law legal services provided by non-lawyers. All non-lawyer services that are of a legal nature are provided under legal supervision. Non-lawyer services at LAO may be provided by Legal Aid Workers (LAWs), by summer law students, or by articling students. The services that they may provide are outlined below.

Q.2.1 Legal Aid Worker (LAW) Services

LAWs are non-legal service providers who provide services to LAOs clients in the areas of criminal and family law. Currently, 23 LAWs (out of a total 53 staff) are employed at LAOs ten FLSCs across the province. LAWs are not required to be paralegals or law clerks, as LAO provides them with subject matter training, but in the area of family law significant law clerk experience in family law and knowledge of relevant family law legislation are considered assets in the hiring process. A significant number of LAWs working in family law are, in fact, licensed paralegals who are not exercising their licences at this time. LAO believes that having a paralegal license is valuable for a LAW, because of the baseline level of knowledge provided. The family LAWs report to lawyer managers and are responsible for providing legal administrative support to lawyers at the FLSCs. They prepare and file family court documents, assist with financial assessments, provide procedural information, take legal aid applications and triage clients to the appropriate LAO service, collect information and help to maintain LAOs client databases.

Q.2.2. Summer Student Services

Each year, LAO employs summer law students, who may be assigned to duties at any of LAOs district offices or in a staff office or FLSC. LAOs summer law students who are providing family services are primarily engaged in drafting family court forms under the supervision of staff lawyers or lawyers working as per diem duty counsel. They may also conduct legal research, and attend court appearances to observe and shadow staff lawyers and duty counsel. Additionally, they may participate in client meetings or draft correspondence, under the supervision of a staff lawyer. Some also conduct public legal education sessions about family law.

In every family law case that a summer student assists with, he or she is directly supervised by a lawyer licensee who has ultimate carriage of the file. Summer law students receive training from counsel and are required to shadow counsel prior to speaking to matters.

In some jurisdictions, summer law students assisting with family legal matters may occasionally appear at the Ontario Court of Justice with the knowledge and consent of the judiciary, although they are not permitted to speak unless the supervising lawyer believes that they are competent to do so. In most cases, the supervising lawyer is present in court with the summer law student; the exception to this rule is when the student attends First Appearance Court/Rule 40 Court to address the Clerk.

Q.2.3 Articling Student Services

LAO has developed its own articling student program to include training within family law. This helps to spark the interest of new lawyers to practice in this area and provides them with experience that prepares them for careers as family lawyers.

In addition to providing the same types of services that are provided by summer students at LAO, articling students may also:

Q.2.4 Other Programs that Involve Law Students in Providing Services to Family Law Clients

The following two programs are not LAO services, but are included here due to their innovative use of law students to provide assistance to clients in the area of family law. LAO provides support to both of these programs.

  1. Law Student Services Provided Through Pro Bono Students Canadas Family Law Project

    The Family Law Project (FLP) is operated by Pro Bono Students Canada (PBSC). Through the FLP, which has been operating in Ontario since 1997, PBSC in partnership with LAO provides up to 100 Ontario law students each year with supervised volunteer placements in eight courthouses located in Toronto, Brampton, Newmarket, London, Windsor and Kingston. The student volunteers work under the supervision of duty counsel and advice lawyers. Each year they assist approximately 12,000-15,000 unrepresented family litigants who are ineligible for legal aid. Their work includes providing legal information, interviewing clients and assisting them in completing court documents in the areas of custody, access and child support. The students do not provide legal advice and do not work on minutes of settlement or court orders.

  2. Law Student Services Provided Through SLASS Family Law Programs

    Each Ontario law school has a Student Legal Aid Service Society, or SLASS. Although funded by LAO, the SLASS do not provide legal aid services directly through or for LAO. SLASS services for financially eligible clients are usually provided by a combination of employed law students (during the summer months), students who are registered in a for-credit clinical education course, and law student volunteers, all of whom are closely supervised by lawyers. The SLASS help to introduce future lawyers to areas of legal aid practice including criminal law and, more recently, family law. Beginning in 2014, six SLASS received three years of dedicated new funding from LAO to support the provision of family law services. The model adopted by each SLASS differs in some respects, but each SLASS program includes the provision of information, summary advice and document preparation assistance to clients whose family law issues include custody, access, child support, spousal support and restraining orders. SLASS students also assist with negotiation and may represent clients at mediation and in court, where possible.

Q.3 What family legal services are covered by legal aid? What family legal services are provided by duty counsel?

This section summarizes LAOs services in the area of domestic family law. LAO delivers its family law services across the province through a wide range of service providers, programs, and service channels.

Q.3.1 Legal Aid Certificate Services

Eligible, low-income Ontarians can apply to LAO for a legal aid certificate to receive representation by a private bar lawyer (or a lawyer at a Family Law Office or FLSC) in relation to domestic family law matters such as child custody and access, child support, and restraining orders. Certificates are also issued for child protection matters. Certificate services are provided to eligible clients who have complex, contested cases or who are particularly vulnerable. As of June, 2015, certificates are now also available for separation agreements and for independent legal advice (ILA) to support clients who choose mediation services to address their family law issue. In 2015/2016, LAO issued 30,195 family law certificates. Included in this number were 2,882 certificates for separation agreements and ILA, and 6,247 child protection certificates. 13,196 of the family law certificates that were issued in 2015/2016 were provided to clients who have experienced domestic violence.

Q.3.2 Duty Counsel Services

Duty counsel services are available to financially eligible clients at family law courthouses across the province. In fiscal year 2015/2016, 177,014 duty counsel assists were provided to family law clients, including 79,139 summary advice assists, 26,408 dispositive assists (assists that help to move a case forward to another stage, for example by obtaining a consent order or arguing an emergency motion), and 72,467 assists that were non-dispositive in nature (for example, document preparation assists).

Depending on local practice, duty counsel may cover custody, access, child support, and spousal support, up to the trial stage. They are able to provide information and advice, assist clients with document preparation, negotiate interim or final settlements and prepare Minutes of Settlement based on negotiations, speak to adjournments, obtain consent orders, argue simple motions, and assist in non-complex, uncontested hearings regarding custody, access, and support. They may also provide limited advice regarding property matters, restraining orders, and FRO matters.

Generally, duty counsel do not prepare separation agreements or review them, except for the purpose of providing limited advice, as there is usually insufficient disclosure available to duty counsel to fully evaluate the issues.

An Enhanced Duty Counsel initiative was established by LAO beginning in 2010 to provide a broader range of duty counsel services through inter-professional teams that include paralegals and articling students, in order to increase continuity of service to duty counsel clients, minimize court appearances, and facilitate earlier resolution of legal issues.

Meantime, in LAOs three Expanded Duty Counsel locations (in Hamilton, London and Oshawa), in addition to providing the enhanced duty counsel range of services duty counsel also have an expanded capacity to create and carry client files in order to provide continuous representation.

Q.3.3 Advice Lawyer Services

LAO advice lawyers located at MAGs Family Law Information Centre (FLIC) offices in Ontario courthouses provide summary legal advice to individuals with family law matters who are not scheduled for court on the day of their attendance. In locations without a FLIC, advice lawyers are available during specified hours at the courthouse or at a local community centre or the LAO district office.

In general the advice lawyer may provide an individual with up to 20 minutes of information on court processes and related general advice on family law matters. This may include:

In 2014/2015, across the province, more than 93,000 people were provided with summary legal advice at family court.

Q.3.4 Staff Services at Family Law Service Centres (FLSC) and Family Law Offices

Across the province, LAO has twelve staff offices that provide family law services. There are ten FLSCs11 plus two other staff offices12 , offering legal assistance to financially eligible clients with family law issues including but not restricted to custody, access, support, child protection and restraining orders. While each FLSC location differs in some respects, each employs the basic staff structure of a lawyer manager, staff lawyers and LAWs working together to serve clients. Services available through FLSCs may include document assistance, referrals (including referrals to advice lawyers and social service agencies), mediation and settlement conferences, and taking certificate applications for complex family law cases, domestic violence cases and child protection cases. Some centres provide full legal representation to clients who are eligible for certificates.

Q.3.5 Advice Lawyer - Family Violence Two Hour Authorization Program

This program enables financially eligible domestic violence survivors to meet with a lawyer of their choice (from a list of available lawyers on LAOs domestic violence panel) and receive up to two hours of free legal advice related to family law or refugee and/or immigration law matters. In 2015/2016, 2,160 clients were provided with assistance through these two-hour consultations.

Q.3.6 Telephone Summary Legal Advice Services

Financially eligible clients can speak with a family lawyer on the telephone for up to 20 minutes by calling LAOs toll-free number. Summary legal advice (SLA) lawyers can provide an opinion on the best legal options for the next steps in a family law case, and are trained to provide support to callers who are experiencing domestic violence or mental health issues. Advice can be provided on a broad range of issues including separation, divorce, custody and access, child or spousal support, changing an existing court order through a motion to change, choosing mediation, and the family court process. Referrals are also provided through the SLA program, including to legal clinics, community agencies and the agencies that support court services. In 2014/2015, 18,862 callers received family law legal advice through this program and in 2015/2016, that number increased substantially to 26,855.

Q.3.7 Enhanced Public Legal Information

Through its Enhanced Public Legal Information (EPLI) Program, non-lawyers working at LAOs call centre are trained to provide and interpret basic information on a wide variety of family law issues and to refer callers to various legal aid and non-legal aid programs. They are able to provide assistance and information in relation to non-urgent or non-complex areas including mediation, family court processes, getting started on family court forms and getting documents ready to go to one of LAOs FLSCs for further assistance with document preparation. They can help callers to understand court processes and available options, including alternatives to going to court. They can also provide callers with assistance on how to find a lawyer.

Q.3.8 Community Partnerships and Hub Services

LAO has entered into partnerships with a number of community hubs to offer family law services to clients in an integrated setting where clients are able to access other legal and social services. These partnerships enable clients to address their intersecting needs in a holistic way and at a one-stop location. Family law services that are provided by LAO at hub locations, including at the Rexdale Community Legal Clinic and the Davenport-Perth Neighbourhood and Community Health Centre, include summary advice, preparation of court documents, referrals to mediation and referrals to services provided by other hub partner agencies. LAOs partnership with Lukes Place in Oshawa to provide wraparound services to victims of domestic violence is another example of holistic service delivery, as is LAOs own Integrated Legal Services Office (ILSO, formerly known as the Ottawa Family Law Office), which offers one-stop help with a variety of matters, including immigration and refugee law matters, in addition to family law assistance.

Q.4 Which legal service offerings (e.g. conducting legal research, preparing correspondence, appearing in court, etc.) could improve the family justice system if they were more widely available?

All legal service offerings could improve the family justice system if they were more widely available, affordable and accessible to the end users. This includes more access to legal aid services through expanded financial and legal eligibility as well as more affordable unbundled legal services options, including some services that may be provided by or with the assistance of non-lawyers, for litigants who do not qualify for legal aid as well as in areas where legal aid does not currently provide coverage (an example of an area where legal aid coverage is not currently available is simple, uncontested divorce).

Non-lawyer support services that could help to increase the affordability and accessibility of legal representation (and allow lawyers to more cost-effectively concentrate on the more complex aspects of a case) might include preparing correspondence, following up on matters with a client, assisting with obtaining reports and other supporting documents for the clients case, preparing documents, meeting with clients and reviewing documents with them, and speaking to routine consents and adjournments. Lawyer support services provided by supervised non-lawyers might also include case law research and preparation of factums for motions.

The family justice system could also be improved by the provision of more public legal information and referral services. Non-lawyers can play a useful role in providing unrepresented litigants with appropriate referrals and helping them to understand legal information and navigate the family court system.

Additionally, non-lawyers can play an important role and fill an existing service gap by supporting and providing continuity of service to vulnerable family law clients and clients with special needs who may require more time and attention. This can be especially important where the client has intersecting issues and ongoing problems that fall outside the area of family law.

Q.5 If an appropriate framework is put in place, should persons other than lawyers, such as paralegals, be permitted to provide legal services in certain family law matters?

The debate around the potential use of paralegals in providing family law legal services is not a new one, and LAO has long been aware of the issues and concerns in this area. In the 1997 Report of the Ontario Legal Aid Review (A Blueprint for Publicly Funded Legal Services), the risks - and the potential opportunities - were set out succinctly by Professor John McCamus:

Family law is a particularly problematic area for independent paralegals. Legal problems in family law are highly complex, volatile, and of extraordinary importance to the parties involved. The lack of accountability and quality control of independent paralegals poses very real risks to family law clients, who are very often themselves unlikely to fully appreciate or understand the complexity or long term consequences of their legal issues.

Supervised paralegals, however, could assume a much larger role in the delivery of legal aid family law services, particularly in Staff Offices and in an expanded duty counsel office. Many private counsel use paralegals for a range of family law tasks. It may be possible to encourage an increase in the use of paralegals by private counsel in the delivery of legally aid services - for example, in the initial interviews with clients and/or intake - and thereby make use of lawyer's time on a certificate more efficient.13

A decade later, in the Report of the Legal Aid Review 2008, Professor Michael Trebilcock noted that LAO had successfully used paralegals in its staff offices, and added that, given the recent assumption of responsibility for regulating paralegals by the Law Society of Upper Canada (LSUC), there was more that could be done to fully utilize their services where it was appropriate and cost-effective14 to do so:

Paralegals are an important current source of legal assistance in the provision of legal aid services and it is incumbent on LAO and the LSUC jointly, going forward, to ensure that all potential opportunities for full utilization of the invaluable human resources they offer are maximized.15

The Law Commission of Ontarios 2013 report, Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity, acknowledged that there are valid concerns about paralegals providing services in family law, but argued that these should not be considered absolute barriers:

Lawyer organizations raise a valid concern about the extent to which a person not trained as a lawyer can provide meaningful assistance in the case of family breakdown. Paralegals, however, can and do play a well-developed role in providing access to justice. Currently, they provide representation in small claims court, traffic court, tribunals such as the Landlord and Tenant Board or the Workplace Safety and Insurance Board and they can represent individuals in the Ontario Court of Justice on minor criminal charges. In a number of these areas, they must be familiar with a number of different statutes and regulations to properly represent their clients. Moreover, some of the administrative tribunals that paralegals work in are as complex in their structure and procedural rules as a court. Some of the work they do engages issues which have grave consequences for the welfare of their clients. In landlord and tenant matters, a persons housing is at stake. In social benefits matters, the success or failure in a matter will make a tangible difference to the quality of life of the claimant. Paralegals also can work closely with lawyers which can reduce the cost to the client.16

The report concluded that:

There may be many tasks that a lawyer performs in a family law matter that can be competently done by a paralegal with training and experience, either in a stand-alone fashion or in some form of symbiotic relationship with lawyers.17

LAO is committed to increasing access to justice for clients in all areas of law and continues to be open to new ideas and approaches in family law. As noted in the McCamus Report and the Trebilcock Report, LAO has for many years successfully employed paralegals in the staff office context. LAOs recent experience in expanding the roles of licensed paralegals as members of inter-professional teams in criminal duty counsel office locations (through the Criminal Law Paralegal Pilot Project, described in the response to Question 7, below) has convinced LAO that licensed paralegals are capable of increasing the quality and quantity of services provided to clients, and that they can do so in a cost-effective manner. Accordingly LAO believes that with the proper safeguards and an appropriate framework in place, persons other than lawyers, such as paralegals, are capable of providing - and should be permitted to provide some legal services in certain family law matters.

Q.6 If yes:

Q.7 Should other people as well as lawyers provide legal aid services? What role could these people play?

LAO has been providing legal aid services through non-lawyer service providers for a number of years. In addition to supervised articling students and summer law students who may be assigned to work in staff offices or duty counsel office locations, supervised paralegals have an established history of working in LAO staff offices, including duty counsel offices, that provide legal aid services. They perform a range of functions from administrative work (such as intake and file maintenance) to more substantive lawyer support work (for example interviewing clients, gathering information, and contacting and interviewing sureties) to direct client service delivery (including through document preparation and, where permitted such as in the context of immigration and refugee law advice and full client representation). Additionally, paralegals have a long history of making valuable contributions in the area of poverty law within the community legal clinic system, where they have historically gone by the designation of Community Legal Workers (CLWs), carrying out a broad range of functions including community outreach and development work, public legal education, summary advice, and client representation before administrative boards and tribunals.

LAOs experience is that the staff office/clinic model has provided an ideal environment for non-lawyers to work alongside and under the supervision of lawyers as part of inter-professional teams capable of providing a full range of legal aid services to clients.

As noted, LAOs non-lawyer legal aid services have always been provided under the supervision of lawyers. However, following the introduction of the LSUCs new paralegal regulatory framework, LAO began to explore potential opportunities for expanding its use of paralegals, bearing in mind the needs of clients, the permitted scope of paralegal practice, and the need to ensure that all legal aid clients receive high quality and cost-effective services. The new licensing framework went some distance to allay LAOs concerns about quality and consistency of service provided by independent paralegals, as it included a mandatory training and accreditation process. However, LAOs approach was cautious. A pilot project focused on licensed paralegals providing a wider range of services within their permitted scope of practice as part of inter-professional legal services teams in criminal duty counsel offices was launched in 2014.

Prior to the launch of the project, LAO employed approximately 35 paralegals in its criminal offices across the province. However, these paralegals operated as non-licenced LAWs and worked only under the direct supervision of lawyers. Their roles were and continue to be varied, from administrative duties like filing and office work to carrying out routine adjournments in set-date court under the supervision of a lawyer. None were employed to exercise their licence without supervision of counsel.

Five licensed paralegals working as LAWs were identified as candidates for the new project at four criminal duty counsel locations around the province. They were all required to have a minimum of two years prior criminal experience working as LAWs. They were provided with training, mentorship, and management supports. Quality assurance tools, including monthly peer mentorship meetings, ongoing substantive legal training, monthly quality review observations by their managers, and daily reporting of their activities into a newly developed Paralegal Portal, ensured that quality client service was provided throughout the process.

In March 2014, the paralegals were officially seconded to their new roles. Over the course of the year since, each paralegal took on new work in accordance with their skills, the availability of work and local staff supports. By February 2016, all five of the paralegals were permanently assigned to one of three new roles that have been developed:

Between April 2014 and May 2015, there was significant expansion of within scope services provided by paralegals at the project sites: there was a sixfold increase in withdrawal of all charges, diversions doubled, and the provision of summary legal advice and information virtually doubled. Surveys of LAO staff working with the paralegals in their new roles at the project sites confirmed that administrative staff and duty counsel felt that they were able to assist more clients and to provide more substantive or comprehensive services than before. One respondent indicated:

Because of the paralegal project I am able to spend more time with clients and give more substantive legal advice. I work in a very busy courthouse so being able to split our lists is extremely helpful to both me and the clients. It frees up more time for me to deal with clients and to provide legal advice and speak with the Crowns.20

The Specialist role, in particular, was felt to enhance the quality of client service, as evidenced by this feedback from another survey respondent:

Our office has a paralegal who has provided exceptional service to the vulnerable client population. When the Canadian Mental Health Association is unable to assist a client, the paralegal in our office intervenes as long as the clients criminal charges fall within her scope and mandate.21

The criminal law paralegal project has demonstrated to LAO that licensed paralegals, provided with support and mentorship, can deliver a range of high quality services to clients and become valuable members of inter-professional legal service teams. The results of the pilot established that the expanded use of licensed paralegals allows clients to be provided with more comprehensive services, and gives duty counsel more time to work with clients on more complex matters. The pilot study has also shown that employing paralegals is most effective in the following circumstances:

LAO believes that the Criminal Law Paralegal Pilot Project is a promising indicator of the potential that properly trained and supported licensed paralegals have for providing a wider range of services as part of inter-professional legal services teams. LAO is currently working on the second phase of this project, which will involve developing an additional five paralegals starting in June 2016.

It should also be noted that, for some time, LAOs Toronto-based Refugee Law Office (RLO) has successfully integrated non-lawyers in the provision of services to vulnerable refugee clients. The RLO is a staff office that offers services through teams of legal services providers including lawyers, licensed paralegals and LAWs. The staff complement at the RLO currently includes seven LAWs and three licensed paralegals, whose work includes conducting detention reviews and hearings before the Refugee Protection Division of the Immigration and Refugee Board.

Q.8 Do you think there are certain types of family law cases or issues that would not be suitable for persons other than lawyers to provide?

Determining which types of family law cases or issues are suitable for non-lawyers will be dependent on the safeguards that are established and on how those safeguards are implemented. Changes to education, training and regulations would all be required before non-lawyers are able to provide unsupervised or relatively unsupervised family law services.

As the legal complexity of a matter increases, it is less likely that non-lawyers will be able to provide substantive or unsupervised legal assistance. Further, the more far-reaching the consequences become for the client (as in contested matters, particularly those that involve custody of or access to children), the more care must be taken in safeguarding competence and quality of service.

Within the context of the foregoing remarks, in LAOs opinion it would not be suitable for persons other than lawyers to have sole carriage of and to provide representation in court (unless there is oversight by a lawyer) on contested custody and access matters, matters that raise mobility issues or parental alienation, restraining orders, summary judgement matters or contempt matters.

Q.9 Are there any promising models in other jurisdictions in Canada or abroad that Ontario should consider, with respect to the role of family law legal service providers, other than lawyers?

In addition to referring to LAOs own experience with non-lawyer services, including services provided through the Criminal Law Paralegal Project, Ontario may wish to look at how other legal aid plans in Canada utilize non-lawyers in providing services in the area of family law. In particular, Alberta, British Columbia, and Nova Scotia have integrated non-lawyers into their family law service models:

In the state of Washington, the LLLT Program has created a process for the integration of non-lawyers into inter-professional teams to address issues of access to justice in family law, much as LAO has done with paralegals in criminal law. The LLLT requires 3000 hours of training as apprentice to a lawyer and substantial legal education specific to the field of practice to qualify LLLTs to practice in family law in Washington.

The program allows people who meet the licensing requirements to set up limited practices, establish fees for their services, operate independently (without attorney supervision) and provide a range of assistance, including: individualized information regarding court procedures; reviewing documents and completing forms; performing legal research; drafting letters and pleadings; advising clients as to necessary documents and explaining how such documents or pleadings may affect the clients case. Unless specifically permitted, an LLLT may not represent a client in legal negotiations, in court, in formal administrative proceedings or in other formal dispute resolution processes.25

4. In closing

Thank you for the opportunity to provide input in the Family Legal Services Review consultation on expanding Legal Services Options for Ontario Families. Should you have any questions or wish to discuss further, please let us know.

Sincerely,

Signature of David McKillop

David McKillop
Vice President, Policy, Research & External Relations
Legal Aid Ontario
April 29, 2016

Footnotes

Footnotes for section 1. Introduction

  1. Some estimates place the proportion of unrepresented litigants in family court as high as 80%.

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  2. Action Committee on Access to Justice in Civil and Family Matters, Access to Civil and Family Justice: A Roadmap for Change (October 2013), online: http://www.cfcj-fcjc.org/sites/default/files/docs/2013/AC_Report_English_Final.pdf. (A Roadmap for Change), at page 19.

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Footnotes for section 2. Expanding access to justice: Improvements to LAO's family law services

  1. Section 13(1) of the Legal Aid Services Act, S.O. 1998, provides that LAO shall provide legal aid services in the areas of criminal law, family law, clinic law and mental health law.
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  2. A study conducted for LAO in 2012 showed that, while nearly all Ontarians with incomes below Statistics Canadas Low Income Measure would have qualified for legal aid in 1996, only half of these low-income Ontarians would qualify in 2012.
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  3. A Roadmap for Change, at page 17.
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  4. A Roadmap for Change, at page 17.
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  5. As funding was only provided for three years through this investment, LAO is currently reviewing the new services and service improvements for sustainability.
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  6. Based on the 2011 LIM.
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  7. Including both domestic family and child protection certificates. 6,247 child protection certificates are included in the number for 2015/2016.
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Footnotes for section 3. LAO's responses to the consultation questions

  1. A Roadmap for Change, at page 11
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  2. Family Law Service Centres are located in Chatham, Newmarket, Peel, Oshawa, Sarnia, Toronto (North), Toronto (Central),Thunder Bay, Welland, and Windsor.
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  3. LAO has two family law staff offices, located in Ottawa and Thunder Bay. In 2013 Ottawas Family Law Office was renamed the Integrated Legal Services Office to reflect the fact that, in addition to traditional family law services, a wider range of services was being made available to clients. The expanded services include assistance with immigration and refugee matters.
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  4. Report of the Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services (1997), online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/olar/ch10.php [McCamus Report], at page 175.
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  5. Report of the Legal Aid Review 2008, online: https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/legal_aid_report_2008_EN.pdf, [Trebilcock Report], at page 174.
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  6. Trebilcock Report, at page v.
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  7. Law Commission of Ontario, Increasing Access to Family Justice Through Comprehensive Entry Points and Inclusivity (February, 2013), online: http://www.lco-cdo.org/family-law-reform-final-report.pdf, [Increasing Access to Family Justice] at page 70.
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  8. Increasing Access to Family Justice, at page 70.
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  9. Report to the Attorney General of Ontario: Report of Appointees Five-Year Review of Paralegal Regulation in Ontario Pursuant to Section 63.1 of the Law Society Act (November 2012), online: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/paralegal_review/Morris_five_year_review-ENG.pdf, [Morris Report],at page 19.
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  10. Morris Report, at page 10.
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  11. LAO internal memorandum to Executive Management Committee on the results of the Paralegal Project, dated June 15, 2015 and on file with LAO.
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  12. LAO internal memorandum to Executive Management Committee on the results of the Paralegal Project, dated June 15, 2015 and on file with LAO.
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  13. Legal Aid Alberta, Annual Report 2013, online: http://www.legalaid.ab.ca/AnnualReport2013/Documents/Legal Aid Alberta Annual Report 2013.pdf, at page 16.
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  14. Ab Currie, We are here to help: the Changing Culture of Legal Aid in Nova Scotia at 3, Canadian Forum on Civil Justice, (unpublished), at page 3.
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  15. Legal Services Society, Making Justice Work, Part 2: Enhancing Legal Aid Services (March 2013), online: http://www.lss.bc.ca/assets/aboutUs/reports/presentations/makingJusticeWorkPart2.pdf, at page 6.
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  16. For a review of the LLLT program, see Brooks Holland, The Washington State Limited License Legal Technician Practice Rule: A National First in Access to Justice, Mississippi Law Journal online: http://mississippilawjournal.org/wp-content/uploads/2013/02/3_Holland_Final.pdf
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